38066 Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 / Proposed Rules

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219–AB10

Safety Standards for Underground

Coal Mine Ventilation

AGENCY: Mine Safety and Health

Administration (MSHA), Labor.

ACTION: Proposed rule.

SUMMARY: MSHA is proposing to amend

the examination interval for preshift

examinations of underground coal

mines by requiring preshift

examinations to be conducted at 8-hour

intervals. After MSHA promulgated a

comprehensive revision of its

ventilation standards in March of 1996,

the United States Court of Appeals for

the District of Columbia Circuit (Court)

reviewed the validity of the rule. On

June 17, 1997, the Court issued an order

invalidating, on procedural grounds

only, the provision relating to the

interval for preshift examinations. This

proposed rule would be essentially the

same as the standard that was

promulgated in 1996 and invalidated by

the Court on procedural grounds. The

proposed rule would clarify both when

a preshift examination would be

required and the length of the shift

covered by the preshift examination.

DATES: Comments must be submitted on

or before September 14, 1998. Submit

written comments on the information

collection no later than September 14,

1998.

ADDRESSES: Comments by electronic

mail must be clearly identified as such

and sent to this e-mail address:

comments@msha.gov. Comments by fax

must be clearly identified as such and

sent to: MSHA, Office of Standards,

Regulations, and Variances, 703–235–

5551. Send mail comments to: MSHA,

Office of Standards, Regulations, and

Variances, 4015 Wilson Boulevard,

Room 631, Arlington, VA 22203–1984.

Commenters are encouraged to submit

comments to MSHA on a computer disk

along with their original comments in

hard copy. Submit written comments on

the information collection requirement

to MSHA at the address above and to

the Office of Information and Regulatory

Affairs, Office of Management and

Budget, New Executive Office Bldg., 725

17th St. NW., Rm. 10235, Washington,

DC 20503, Attn: Desk Officer for MSHA.

FOR FURTHER INFORMATION CONTACT:

Patricia W. Silvey, Director, Office of

Standards, Regulations, and Variances,

MSHA: 703–235–1910.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

This proposed rule contains an

information collection which is subject

to review by the Office of Management

and Budget (OMB) under the Paperwork

Reduction Act of 1995 (PRA 95). The

title, description, and respondent

description of the information collection

are shown below with an estimate of the

annual reporting burden. Included in

the estimate is the time to conduct an

additional preshift examination, the

time to make a record, the time to obtain

a countersignature from the mine

foreman or equivalent mine official, and

the time to file the form.

With respect to the following

collection of information, MSHA invites

comments on: (1) Whether the proposed

collection of information is necessary

for proper performance of the functions

of the Agency, including whether the

information will have practical utility;

(2) the accuracy of the estimate by

MSHA of the burden of the proposed

collection of information, including the

validity of the methodology and

assumptions used; (3) ways to enhance

the quality, utility, and clarity of

information to be collected; and (4)

ways to minimize the burden of the

collection of information on

respondents, including through the use

of automated collection techniques,

when appropriate, and other forms of

information technology.

Description

Section 75.360(a)(1) would require

that a certified person designated by the

operator make a preshift examination

within 3 hours preceding the beginning

of any 8-hour interval during which any

person is scheduled to work or travel

underground. Presently § 75.360(f)

requires a record of the results of each

preshift examination, including a record

of hazardous conditions and their

locations found by the examiner during

each examination and of the results and

locations of air and methane

measurements. The record must also

include a notation that the hazardous

conditions found during the preshift

examination were corrected. This record

must be countersigned by the mine

foreman or equivalent mine official by

the end of the mine foreman’s or

equivalent mine official’s next regularly

scheduled working shift. The mine

operator has the option of conducting a

portion of the additional preshift

examination concurrently with the onshift examination. In this instance, the

additional preshift examination

essentially would consist of the

examination of outby areas not covered

by an on-shift examination such as

travelways, work areas, and electrical

installations. Because large mines

generally have longer outby travelways

and more outby work areas and

electrical installations to be examined

than small mines, the additional time to

perform the preshift examination would

take longer in large mines. MSHA

estimates that it would take an examiner

an additional hour to conduct an

additional preshift examination in a

large underground coal mine and an

additional 45 minutes in a small

underground coal mine. An examiner

would take about 30 minutes to make

the record in a large mine and about 15

minutes in a small mine, and the mine

foreman or equivalent mine official

would take about 10 minutes to review

and countersign the record in a large

mine and about 5 minutes in a small

mine.

Description of Affected Mines

The affected mines are underground

coal mines. MSHA estimates that this

provision annually would affect 127

underground coal mines (75 with fewer

than 20 employees and 52 with 20 or

more employees).

Information Collection Burden

Based on MSHA’s traditional

definition of ‘‘small mine’’ as one with

fewer than 20 employees, the total

estimated burden for all affected mines

would be 78,001 hours, and compliance

costs associated with such hours would

be $2,182,000. Under MSHA’s

traditional definition, total burden to

small mines would be 13,000 hours at

a cost of $361,000. Specifically, small

mines’ burden hours and costs consist

of: 9,000 hours related to conducting the

additional preshift examination at a cost

of $243,000; 3,000 hours related to

making the record at a cost of $81,000;

and 1,000 hours related to reviewing,

countersigning and filing the record at

a cost of $37,000. The total burden to

large mines would be 65,001 hours at a

cost of $1,821,000. Large mines’ burden

hours and costs consist of: 39,000 hours

related to conducting the preshift

examination at a cost of $1,053,000;

19,500 hours related to making the

record at a cost of $527,000; and 6,501

hours related to reviewing,

countersigning and filing the record at

a cost of $241,000.

Using the SBA definition, when a

‘‘small mine’’ is defined as a mine with

500 or fewer employees, 126 of the 127

affected mines are considered small.

Under this definition, 76,751 of the

78,001 burden hours are related to small

mines. The costs related to the 76,751

burden hours are $2,147,000. Of the
Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 / Proposed Rules 38067

76,751 burden hours: 47,250 hours are

related to conducting the additional

preshift examination at a cost of

$1,276,000; 22,125 hours are related to

making a record at a cost of $598,000;

and 7,376 hours are related to reviewing

and countersigning the record at a cost

of $273,000. Burden hours to the one

large mine affected would be 1,250

hours at a cost of $35,000.

Under § 3507(o) of PRA 95, the

Agency has submitted a copy of this

proposed rule to OMB for its review and

approval of the information collection.

Interested persons are requested to send

comments regarding these burden

estimates or any other aspect of this

information collection, including

suggestions for reducing this burden to:

(1) the Office of Information and

Regulatory Affairs, OMB, Attn: Desk

Officer for MSHA, New Executive Office

Bldg., 725 17th St. NW., Rm. 10235,

Washington, DC 20503; and (2) Patricia

W. Silvey, Director, Office of Standards,

Regulations, and Variances, MSHA,

4015 Wilson Boulevard, Room 631,

Arlington, VA 22203.

II. Background

The preshift examination is a

critically important, fundamental safety

practice in the mining industry. It has

historically been a primary means of

determining the effectiveness of an

underground coal mine ventilation

system, and of detecting hazardous

conditions and practices. The preshift

examination has proven to be

particularly effective because it provides

a thorough safety check before work

commences underground on the shift

for which the examination is conducted.

A preshift examination can detect

developing hazards as well as existing

hazards.

The Federal Mine Safety and Health

Act of 1977 (Mine Act) contains interim

mandatory safety standards that address

preshift examinations. Interim standard

§ 303(d)(1) requires that preshift

examinations be conducted ‘‘within 3

hours immediately preceding the

beginning of any shift * * *.’’ MSHA

adopted this provision as a permanent

safety standard in its regulations for

underground coal mines, promulgating

it in 1978 as 30 CFR 75.303(a).

Section 303(d)(2) of the Mine Act is

another interim standard that addresses

preshift examinations. It provides that

no person, other than certified persons

designated to conduct the examination,

is permitted to enter any underground

area, except during any shift, unless a

preshift examination of such area has

been made within 8 hours prior to the

person entering the area. Under this

provision, miners already working on a

shift for which a preshift has been

completed may remain working

underground during the subsequent

preshift examination being conducted

for the oncoming shift. In 1978, MSHA

adopted this provision as a permanent

safety standard in its regulations for

underground coal mines as 30 CFR

75.303(b).

The general practice in the mining

industry at the time the Mine Act was

enacted was for coal miners to work in

shifts of 8 hours. Thus, the effect of the

preshift examination requirement was

that examiners conducted preshift

examinations every 8 hours. Since 1977,

overlapping work shifts and work shifts

of various lengths (novel work shifts)

have become common, making it

necessary for MSHA to address this

issue in its 1992 revisions to the

ventilation standards for underground

coal mines.

MSHA revised its preshift

examination standards as part of a final

rule for ventilation standards and

retained the requirement that preshift

examinations are to be conducted

‘‘within 3 hours preceding the

beginning of any shift.’’ However, in its

preamble discussion to the 1992

ventilation final rule (57 FR 20893),

MSHA interpreted this language to

mean that if the mine used regular shifts

that were longer than 8 hours in length,

the preshift examination would apply to

the entire length of the shift. The 1992

revisions continued to allow work to

proceed underground during the

preshift examination for the oncoming

shift.

In 1994, the Agency proposed a new

preshift examination rule in an attempt

to clarify and standardize the

application of certain provisions of the

1992 preshift examination rule. In the

comments submitted to MSHA during

the 1994 rulemaking, a segment of the

mining community expressed concern

that because of novel work schedules,

preshift examinations were not being

conducted frequently enough to assure

safe working conditions. A second

concern expressed was that conducting

preshift examinations at intervals longer

than 8 hours would reduce the

protection afforded miners under the

Mine Act. A final concern expressed

was that MSHA introduced confusion

into the preshift examination

requirements when it interpreted the

acceptable intervals for preshift

examinations. Another segment of the

public argued that by the language of

§ 303(d)(2) Congress tacitly accepted

shifts longer than 8 hours with only one

preshift examination required. The same

segment of the public argued that a

practice had built up over a period of

time allowing not only longer shifts but

also ‘‘excursions’’ where miners work

over 8 hours under specific conditions.

Finally, commenters representing both

labor and industry recommended that

MSHA adopt a rule requiring preshift

examinations for each 8 hour period

that miners are underground.

In response to these comments, the

Agency substituted the phrase ‘‘8-hour

interval’’ for the phrase ‘‘beginning of

any shift’’ when it promulgated the 1994

proposed rule as a final rule in 1996.

The 1996 standard thus required a

preshift examination, ‘‘* * * within 3

hours preceding the beginning of any 8-

hour interval during which any person

is scheduled to work or travel

underground * * *’’. MSHA also

acknowledged in the preamble to the

final rule (61 FR 9791) that, in

accordance with longstanding practice,

unplanned short excursions past the 8-

hour period that occur infrequently are

accepted without an additional preshift

examination.

In the preamble to the 1996 final rule

(61 FR 9791), MSHA discussed its

rationale for adopting an 8-hour preshift

examination rule. MSHA stated that:

* * * MSHA agrees with commenters that

evolution within the industry in shift

scheduling has presented a number of

questions and controversies regarding the

standard which must be resolved to assure

that proper preshift examinations are

conducted within suitable time frames. Based

on comments, the final rule adopts a

modification to clarify and standardize the

application of the preshift examination in

recognition of the use of novel shifts while

maintaining the protection of the existing

standard. * * *

Underground working schedules of three 8-

hour shifts per day were virtually standard

when the previous rule was implemented.

Currently a substantial number of mining

operations have work shifts of more than 8

hours. Other operations stagger or overlap

shifts providing for continuous underground

mining activities. Some mines that operate

around the clock schedule persons to begin

shifts at one- or two-hour intervals. In such

cases, controversies and misunderstandings

have developed regarding application of the

current standard.

In adopting an 8-hour preshift

requirement, the Agency also agreed (61

FR 9791) with comments suggesting that

‘‘the original legislation of the Mine Act

envisioned that preshift examinations

would be conducted for each 8-hour

interval that persons worked

underground.’’ MSHA reached this

conclusion both from the traditional

practice at the time of the legislation

and from the language of § 303(d)(2) of

the Mine Act.

On June 17, 1997, the United States

Court of Appeals for the District of
38068 Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 / Proposed Rules

1 The Court stated, ‘‘At the least, 30 CFR

75.360(a)(1) is a reasonable interpretation of openended statutory language. * * * We see no reason

why we should not think of 30 CFR 75.360(a)(1) as

just such an ‘improved mandatory safety standard[]’

issued in light of changed circumstances in the

mining industry.’’ (116 F.3d 520, 530)

2The accidents are: Linda Enterprise, Inc., #31–

A mine, March 23, 1990, 1 fatality; Waco Limited

Partnership No.1, No. 2 mine, December 18, 1995,

1 fatality; Miller Branch Enterprises, Inc., No. 1

mine, 1 fatality; MAG Inc., Alloy Deep Mine #2,

October 2, 1993, 1 fatality; M&D Coal Co., Inc., No.

3 mine, August 15, 1996, 1 fatality; and Day Branch

Coal Co., Inc., No. 9 mine, May 11, 1994, 2

fatalities.

Columbia Circuit, in National Mining

Association v. Mine Safety and Health

Administration and Secretary of Labor

(MSHA), 116 F.3d 520, (D.C. Cir. 1997)

issued an order granting a petition for

review on the National Mining

Association’s challenge of 30 CFR

75.360(a) relating to preshift

examinations. The court acknowledged

that the approach used by MSHA in

adopting the 8-hour time interval for the

preshift examination was a reasonable

one,1 but invalidated the provision on

procedural grounds due to lack of

sufficient notice to the parties in the

rulemaking (supra 116 F.3d 520, 530).

The effect of the decision was to

reinstate the portion of the previous

regulation that requires a preshift

examination to be conducted prior to

the beginning of any shift. MSHA

published a Federal Register document

on June 30, 1997 (62 FR 35085)

conforming the language of the existing

standard to the Court’s order.

MSHA continues to believe that it is

necessary to address the issues

surrounding the preshift examination

interval. The standard must provide for

sufficient protection, be clear in its

recommendations, and be properly

implemented to ensure safe working

conditions in underground coal mines.

Accordingly, MSHA encourages all

parties to fully express their viewpoints

during this rulemaking to assist the

Agency in promulgating a final rule that

most appropriately addresses the safety

of our nation’s underground coal

miners.

III. Discussion

Section 75.360 Preshift Examination at

Fixed Intervals

Existing § 75.360(a)(1) of the MSHA

ventilation standards provides

Except as provided in paragraph (a)(2) of

this section, a certified person designated by

the operator shall make a preshift

examination within 3 hours preceding the

beginning of any shift during which any

person is scheduled to work or travel

underground. No person other than certified

examiners may enter or remain in any

underground area unless a preshift

examination has been completed for the shift.

Proposed paragraph (a)(1) would

modify the existing language of

§ 75.360(a)(1) to require preshift

examinations at fixed 8-hour intervals.

It would replace the word ‘‘shift’’ with

the phrase ‘‘8-hour interval’’. In

addition, the proposed rule would add

the sentence, ‘‘The operator shall

establish the 8-hour intervals of time

subject to the required preshift

examinations.’’

The Agency believes that, considering

the speed at which underground

conditions can change, a reasonable

period must be identified after which

another examination is necessary. For

example, methane, an explosive gas

naturally occurring in coal mines,

commonly builds up over time,

especially in newly mined areas.

Methane may also accumulate in other

areas, such as where water

accumulation interferes with mine

ventilation. A preshift examination

should result in the detection of this

explosive gas and the timely correction

of the condition before it reaches a

hazardous level. Also, the roof and ribs

tend to deteriorate over time in outby

entries used as travelways and on the

sections of a mine where miners are

assigned to work. Roof pressures and

subsequent falls can damage ventilation

controls, resulting in hazardous

conditions. Equipment damaged by a

roof fall, including belt haulage systems

or trolley wire systems, can lead to mine

fires or explosions. A preshift

examination provides a vehicle to detect

these developing hazards.

MSHA has reviewed the history of

fatalities that have occurred at

underground coal mines since 1990 to

determine if any of the fatalities

occurred more than 8 hours after the

start of the shift, and therefore may have

been prevented had the proposed rule

been in place. MSHA has placed in the

rulemaking record 32 fatal accident

reports of MSHA investigations

conducted since 1990 in which the

accident was identified as occurring

more than 8 hours into the shift. At least

six of the reports, representing seven

fatalities, address instances where an

additional preshift examination might

have identified the hazards that resulted

in the fatalities and allowed an

opportunity for corrective action.2 This

is approximately 3 percent of the total

number of fatalities which occurred at

underground coal mines during this

time period.

In reviewing these accident reports,

MSHA recognizes the difficulty in

determining whether an additional

preshift examination would have

prevented a specific fatality from

occurring, particularly since prior

examinations had in some cases failed

to identify the hazardous conditions or

practices. However, MSHA does not

concede that subsequent examinations

will necessarily fail in their purpose

simply because one or more previous

examinations may have been

inadequate. A preshift examination

conducted at 8-hour intervals would

provide an opportunity for the examiner

to identify hazardous conditions or

practices that may have been overlooked

in an earlier examination. It should also

be noted that the conditions in a mine

may have further deteriorated after 8

hours into the shift, and that the same

examiner or a different examiner

conducting the additional preshift

examination might have identified the

hazard and caused appropriate actions

to be taken to correct the condition and

protect the safety of the miners.

It is not the intent of the Agency that

the preshift examination be a

continuous examination without a

beginning or an end. Once a preshift

examination has been conducted, an

additional preshift examination would

not be necessary during the 8-hour

interval covered by the preshift

examination simply because persons

start to work after the beginning of the

normal shift start time. Under the

proposed rule, persons could enter or

leave the mine, regardless of their shift

schedule, during any established 8-hour

period for which a preshift examination

has been conducted. However, another

preshift examination must be completed

prior to the beginning of the next 8-hour

interval if any persons, other than

examiners, remain in the mine during

the next 8-hour interval or are

scheduled to enter the mine during the

oncoming interval. For example, if the

established time interval for the 8-hour

preshift examination covers the period

from 8:00 a.m. to 4:00 p.m., no one

except mine examiners may enter the

mine or remain underground after 4:00

p.m. unless a preshift examination has

been conducted for the 8-hour interval

beginning at 4:00 p.m. As with the

existing standard, no person other than

examiners may enter any underground

area that is subject to a preshift

examination prior to the completion of

the preshift examination for that area.

Also, supplemental examinations

continue to be required under § 75.361

before anyone enters areas of the mine

that had not had a preshift examination.

The proposal would require one

preshift examination at mines that

operate with only one 8-hour shift per

day. If the mine uses regular shifts that
Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 / Proposed Rules 38069

are longer than 8 hours in length, the

preshift examination would cover an 8-

hour interval. The proposal would

require three preshift examinations

where persons are underground for

more than 16 hours per day. For

example, at a mine operating two 10-

hour shifts per day, the proposed rule

would require three examinations per

day. As with the existing standard, the

proposed rule would not require

examinations for designated 8-hour

periods when no one enters the mine.

Also consistent with the existing

standard, no one, except other

designated preshift examiners, may

accompany a preshift examiner during

the examination.

MSHA recognizes that the proposed

rule may cause some mine operators to

perform additional examinations that

are not currently required. For example,

some mines operate single or multiple

extended shifts of up to 14 hours each.

Mines that are not currently conducting

preshift examinations at 8-hour

intervals during extended shifts would

be impacted by the proposed rule. The

proposed rule would require additional

preshift examinations at these mines.

During the 1996 MSHA ventilation

rulemaking and subsequent litigation, a

segment of the mining community

expressed the view that extended and

novel work shifts are being used more

frequently by mine operators and that

the time interval for preshift

examinations should not be limited to 8

hours. The Agency solicits comments on

the benefits and hazards associated with

an alternative approach to preshift

examinations that would permit an 81⁄2,

9, or up to a 10-hour interval for preshift

examinations. The Agency specifically

solicits comments on any benefits and

hazards that may be associated with this

alternative approach.

Earlier comments suggested that the

longstanding MSHA practice of

accepting certain excursions beyond the

8-hour preshift examination time

interval should be continued. MSHA

has permitted excursions in the past

when miners are required to stay

beyond an 8-hour shift to catch up on

production, perform mechanical repairs,

install roof support, or as a result of a

mantrip delay. The Agency solicits

comments on: whether any excursions

should be permitted beyond 8 hours

without an additional examination; the

maximum length of any such excursion;

and the safety impact of such an

excursion.

A commenter has stated that requiring

preshift examinations every 8 hours

creates overlaps and confusion with

State laws, specifically the laws of West

Virginia. While MSHA is not barred

from promulgating otherwise

appropriate safety and health standards

because they may result in additional

responsibilities for operators, neither

does the Agency desire to impose

requirements that are confusing or

unduly burdensome.

A commenter in the 1996 ventilation

rulemaking also suggested that the

regulation should stipulate specific

times for examinations, such as 12:00

midnight, 8:00 a.m., and 4:00 p.m. as

the beginning of the 8-hour intervals for

which preshift examinations would be

required. MSHA believes there is no

safety or health benefit to be gained

through prohibiting operators from

adopting other 8-hour intervals, e.g.,

10:00 p.m., 6:00 a.m., and 2:00 p.m., to

accommodate their individual

operations and the proposed standard

would therefore allow operators the

flexibility to establish their own shift

schedules. For example, an operator

may elect a starting time of 11:00 a.m.

for a weekend project, provided the

preshift examination is conducted

within the 3 hours prior to the

beginning of the shift.

As proposed, the preshift examination

would be conducted within 3 hours

preceding the beginning of any 8-hour

interval. For accuracy, the title of

§ 75.360 would be changed from

‘‘Preshift examination’’ to ‘‘Preshift

examination at fixed intervals.’’ The text

of the proposed standard and the

preamble discussion of the standard

would continue to refer to the

examination as the ‘‘preshift

examination.’’ Because of the history of

the term and the widespread

understanding in the industry of the

safety checks required by a preshift

examination, MSHA is proposing to

continue the use of the term ‘‘preshift

examination’’ in the body of the

standard and to continue to refer to the

examination as the preshift

examination.

IV. Executive Order 12866 and

Regulatory Flexibility Act

Executive Order 12866 requires that

agencies assess both the costs and

benefits of proposed regulations. MSHA

has determined that this proposed rule

does not meet the criteria of a

significant regulatory action and,

therefore, has not prepared a separate

analysis of costs and benefits. All of the

compliance costs of this proposed rule

are paperwork related costs. Thus, the

derivation of the compliance costs that

are summarized in this document are

contained in the paperwork package

that was submitted to the Office of

Management and Budget. Copies of the

paperwork package are available upon

request from MSHA, Office of

Standards, Regulations, and Variances

(703–235–1910).

Benefits

A timely preshift examination in

underground coal mines is a primary

method of assuring safety to miners.

Coal miners rely on the preshift

examination to provide protection and

often take it for granted that an adequate

examination has been conducted.

There is a potential for multiple

fatalities in an underground coal mine

when explosive quantities of methane

exist or when a roof deteriorates and

falls. It is extremely difficult to

specifically quantify safety benefits

related to a particular safety factor such

as a preshift examination. Due to the

hazardous environment that miners

work in, an unsafe condition or work

practice could jeopardize the well-being

of all miners underground.

As discussed earlier, MSHA has

identified seven fatalities, associated

with six mining accidents that have

occurred since 1990, which could

potentially have been prevented if the

requirements of the proposed rule were

followed. This is approximately 3

percent of the total number of fatalities

which occurred at underground coal

mines during this time period.

During this same period of time there

were 59,000 injuries for all underground

coal mines. Although the reports of the

accidents do not permit us to make a

precise analysis of the causes of all the

injuries, if we were to extrapolate using

the same 3 percent that we used for

fatalities the Agency predicts that 1,770

injuries might have been prevented.

MSHA believes that if a preshift

examination had been conducted at the

intervals that would be established by

the proposed rule, it is reasonable to

expect that the examiners would have

identified at least some of the hazardous

conditions or practices resulting in the

injuries and fatalities. MSHA realizes

that in some cases this assumes that the

additional preshift examinations would

have identified hazardous conditions or

practices that earlier examinations

failed to recognize. However, an

additional examination would afford the

mine operator with another opportunity

to identify hazards. MSHA believes that

this position is reasonable and that

subsequent examinations could discover

hazardous conditions or practices, even

though earlier examinations may have

been inadequate. Furthermore, the

requirement that a preshift examination

be conducted during every 8-hour

interval is not unreasonable in light of

the fact that within such a time period

it is possible that conditions in a mine
38070 Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 / Proposed Rules

can deteriorate. It was in this spirit that

Congress originally enacted the interim

preshift examination standards which

envisioned such examinations occurring

for each 8-hour shift.

Therefore, MSHA has found it

prudent to take a conservative approach

and propose an 8-hour interval for

preshift examinations to provide

adequate protection for miners. This

proposed rule should decrease the

occurrence of fatalities, injuries, and

accidents in underground coal mines.

Compliance Costs

MSHA estimates that approximately

127 underground coal mine operators

would need to conduct an additional

preshift examination. Based on a small

mine definition of fewer than 20

employees, about 75 of the mines are

small mines and 52 are large mines. The

mine operator has the option of

conducting a portion of the additional

preshift examination concurrently with

the on-shift examination. Therefore, the

compliance costs of the additional

preshift examination essentially consist

of the cost of the examination of outby

areas not covered by an on-shift

examination, such as travelways, work

areas, and electrical installations.

The proposed rule is estimated to cost

about $2,182,000 per year, of which

small mine operators (those with fewer

than 20 employees) would incur about

$361,000 per year and large mine

operators would incur $1,821,000 per

year.

V. Regulatory Flexibility Act (RFA) and

Small Business Regulatory Enforcement

Fairness Act (SBREFA)

The RFA requires regulatory agencies

to consider a rule’s impact on small

entities. Under the SBREFA

amendments to the RFA, MSHA must

use the Small Business Administration

(SBA) definition for a small mine of 500

or fewer employees or, after

consultation with the SBA Office of

Advocacy, establish an alternative

definition for the mining industry by

publishing that definition in the Federal

Register for notice and comment. MSHA

traditionally has considered small

mines to be those with fewer than 20

employees. For the purposes of the RFA

and this certification, MSHA has

analyzed the impact of the proposed

rule on all affected mines with 500 or

fewer employees, as well as on those

with fewer than 20 employees.

The Agency has provided a copy of

this proposed rule and regulatory

flexibility certification statement to the

SBA Office of Advocacy. In addition,

MSHA will mail a copy of the proposed

rule, including the preamble and

regulatory flexibility certification

statement, to all mine operators and

miners’ representatives.

Regulatory Flexibility Certification

In accordance with section 605 of the

RFA, MSHA certifies that this proposed

rule would not have a significant

economic impact on a substantial

number of small entities. No small

governmental jurisdictions or nonprofit

organizations are affected.

Under the SBREFA amendments to

the RFA, MSHA must include a factual

basis in the proposed rule for this

certification. The Agency also must

publish the regulatory flexibility

certification in the Federal Register,

along with its factual basis, followed by

an opportunity for comment by the

public.

Factual Basis for Certification

The underlying data in Table I shows

that the compliance costs of this

proposed rule does not exceed 1 percent

of the estimated revenues of the

underground coal mines affected by this

proposed rule. When small

underground coal mines affected by this

proposed rule are defined as those that

employ fewer than 20 employees, then

small mines account for about $361,000

of the total compliance costs and

estimated revenues of such mines are

approximately $50.2 million. Thus

compliance costs as a percent of

estimated revenues for the affected

mines are 0.72 percent. When small

underground coal mines affected by this

proposed rule are defined as those that

employ 500 or fewer employees, then

small mines account for $2,147,000 of

the total compliance costs and estimated

revenues of such mines are

approximately $641,237,000. In this

case compliance costs as a percentage of

estimated revenues for the affected

mines are 0.33 percent.

TABLE I.—COSTS AND REVENUES FOR AFFECTED UNDERGROUND COAL MINES

Section 75.360(a)(1)

Proposed

rule costs

(thous.)

Estimated

revenues of

affected

mines

(thous.)

Costs as

percent of

revenues

Small Mines (<20) .................................................................................................................................... $361 $50,200 0.72

Small Mines (≤500) .................................................................................................................................. $2,147 $641,237 0.33

This proposed rule would not have a

significant impact on a substantial

number of small entities that are

affected by this rule.

VI. Unfunded Mandates and Executive

Order 12875

For purposes of the Unfunded

Mandates Reform Act of 1995, as well

as E.O. 12875, this proposed rule does

not include any Federal mandate that

may result in increased expenditures by

State, local, and tribal governments, or

increased expenditures by the private

sector of more than $100 million.

VII. Executive Order 13045

In accordance with Executive Order

13045, MSHA has evaluated the

environmental health or safety effect of

the proposed rule on children. The

Agency has determined that the

proposal will have no effect on children.

List of Subjects in 30 CFR Part 75

Mine safety and health, Reporting and

recordkeeping requirements,

Underground coal mining, Ventilation.

Dated: July 8, 1998.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and

Health.

Accordingly, it is proposed to amend

part 75, subchapter O, chapter I, title 30

of the Code of Federal Regulations as

follows:

PART 75—MANDATORY SAFETY

STANDARDS—UNDERGROUND COAL

MINES

1. The authority citation for part 75

continues to read as follows:

Authority: 30 U.S.C. 811.
Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 / Proposed Rules 38071

2. In subpart D of Part 75, in § 75.360,

revise the section heading and

paragraph (a)(1) to read as follows:

§ 75.360 Preshift examination at fixed

intervals.

(a)(1) Except as provided in paragraph

(a)(2) of this section, a certified person

designated by the operator shall make a

preshift examination within 3 hours

preceding the beginning of any 8-hour

interval during which any person is

scheduled to work or travel

underground. No person other than

certified examiners may enter or remain

in any underground area unless a

preshift examination has been

completed for the established 8-hour

interval. The operator shall establish 8-

hour intervals of time subject to the

required preshift examinations.

* * * * *

[FR Doc. 98–18687 Filed 7–13–98; 8:45 am]

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